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Question #1 – H1B Nonimmigrant Work Visa
My H1B was approved through Consular Processing. I am planning to go in August to get my Visa stamp but I want to do it from a different city in India then I used for my approval. Can I change the city without complicating matters?
Answer #1 – You may experience significant delays if you schedule an interview at a Consulate that was not identified in your I-129 petition. It is our recommendation that you schedule your interview for the Consulate that was listed in your I-129 petition as to avoid any unnecessary delays.
Question #2 – NAFTA (TN) Visas
I am on a TD visa in the US. Can I get a work permit?
Answer #2 – No. The spouse and/or child of a TN visa worker “shall not accept employment in the United States unless otherwise authorized.”
Question #3 – Unlawful Presence in USA
I cannot remember the specifics regarding unlawful presence towards the 3 yr and 10 yr bars, can you provide those time periods?
Answer #3 – If an applicant remains in the US unlawfully (without authorization) for more than 180 days, they may be subject to the 3 year bar. If an applicant remains in the US unlawfully (without authorization) for more than 365 days (1 year), they may be subject to the 10 year bar.
Question #4 – H-1B Nonimmigrant Work Visa
Does the time on my H-1B visa start the day that is approved or when I first enter the U.S. using it?
Answer #4 – The six year period begins to accrue when you first enter the U.S. on a valid H-1B nonimmigrant visa. Time is only counted towards the 6 year limit when you are physically present in the U.S., each time you go outside the U.S., the clock stops and you are no longer in H-1B nonimmigrant visa status until you return to the U.S.
Question #5 – Employment Based Green Card
When should your employer file your I-140 with Premium Processing? Does it significantly speed up the processing times?
Answer #5 – If another immigration application or benefit is connected to/relying up the I-140 petition, it is recommended that the I-140 be filed with premium processing. For instance in the most common scenario, if an applicant is nearing his/her 6th year in H-1B status and the Attorney’s Office is preparing the I-140 petition, it should be filed with premium processing. Premium processing will render a decision within 15 calendar days of filing, unless an RFE is issued, in which the 15 day clock will stop until a response is sent to USCIS and once received, the 15 day clock will start back up again. With the I-140 approval, the Attorney’s office can prepare the H-1B extension petition and extend the beneficiary’s H1B status beyond the 6th year indefinitely until a visa number becomes available for the beneficiary.
Question #6 – Employment Based Immigration
Can I change my I-140 from one category to the other without being penalized? I am on EB-3 but want to change to E-B2.
Answer #6 – If you are eligible to file under EB2, have a willing sponsor, and if you are already the recipient of an approved I-140 for the EB3 preference category, you may be able to upgrade to EB2; however, the process requires starting from the beginning of the GC process – with the test of the US Labor market, followed by the filing of the Labor Certification. At the I-140 stage, you would file under EB2, and make a request for the USCIS to recapture your earlier priority date in EB3 and apply that towards your I-140 EB2.
Question #7 – Family Based Immigration
Do I need to change my I-130 petition if I filed for my relative as a LPR, but now I have become a US Citizen?
Answer #7 – Yes, you should contact the USCIS Office that is reviewing your application and inform them that you have become a U.S. Citizen by submitting a copy of your Naturalization Certificate.
Question #8 – Employment Based Immigration
My I-140 was just approved. The next step is to apply for Adjustment of Status (AOS). What kind of documents do I need to have for the AOS application?
Answer #8 – Yes, the next step would be to file for Adjustment of Status; however, is your priority date current? If not, then you will need to begin collecting supporting documentation now, and once your priority date becomes current, submit the documentation with the completed I-485 form to the USCIS. Some of the documents required: birth certificates, educational transcripts/degrees, passports, federal income tax returns, employment letter, etc. Speak with an Immigration Attorney for a complete list of documents required for the I-485 filing.
Question #9 – Employment Authorization for Certain H4 Spouses
What forms do I need to file an H4/EAD visa for my wife? What are the USCIS filing fees for this visa?
Answer #9 – Form G-28, if you have an Attorney representing you for the filing, and Form I-765 are required to file the request for H4/EAD, along with supporting documentation to establish the H4 spouse’s eligibility. The USCIS filing fee is $410.00, the check should be made payable to the “US Department of Homeland Security.”
Question #10 – General
How do you determine a Prevailing Wage for a position?
Answer #10 – The Department of Labor determines the prevailing wage for a particular position depending upon the job description, education level and experience required.
The Foreign Labor Certification Data Center Online Wage Library is accessible to the public on the Internet at: Online Wage Library – FLC Wage Search Wizard
MVP Law Group would like to thank everyone who contributed a question or comment.
Our next “Immigration Q & A Forum” is scheduled for Friday, June 14, 2019!
Please remember to submit your questions/comments on our H1B Visa Lawyer blog!